She says that she cannot remember the exact date of receipt but knows that it was sometime in the week commencing Monday 28 March 2004. She says that she knows this because whenever she receives a document related to the property she gives it immediately to her father. He was away between Sunday 29 March 2004 and Saturday 3 April 2004. Had she received the notice on Friday 26 March 2004, she would have given it to her father before he went away. Implicit in what the second defendant says is that delivery of the posted letter occurred at the earliest on Monday 29 March 2004 and at the latest on Friday 2 April 2004. In saying this, I accept, without evidence, that Australia Post does not make deliveries to street addresses on Saturday or Sunday.
Findings in relation to giving of notice
10 The evidence justifies an inference that each "Notice of Exercise of Option" signed by the plaintiff was sent to the relevant defendant by post and was delivered to and received by that defendant. I also infer that each notice, although dated 24 March 2004, was sent with the solicitors' relevant covering letter dated 25 March 2004 and that the date of posting was Thursday 25 March 2004 or a later date.
11 The evidence I have mentioned does not enable me to make any finding as to the date of delivery or receipt of each postal article beyond a finding that delivery by post occurred, in each case, on a day in the period Monday 29 March 2004 to Friday 2 April 2004. It was submitted on behalf of the plaintiff that I should infer that delivery occurred, in each case, within the time mentioned in clause 27.1, that is, not later than Monday 29 March 2004. Such an inference is, in Mr Harris's submission, supportable by reference to the fact that, when the defendants' solicitors wrote to the plaintiff's solicitors on 12 May 2004 (which appears to be the first occasion on which reference was made to the exercise notices in the solicitors' correspondence), the defendants' solicitors made no explicit reference to the notices not having been given within the required time. The letter began:
"We refer to your letter dated 25/3/04 and to the purposed Notices to [sic] Exercise of Option attached thereto and are instructed to dispute the form of the Notices and deny the validity of and entitlement to the issue of the notices.
We are instructed to advise that your client has not complied with Clause 27 of the Lease and accordingly is not entitled to seek an option to renew the Lease and our clients shall not give a renewed Lease to your client and they further rely on the numerous breaches by your client of the collateral Leases as follows …"
12 I decline to draw the inference Mr Harris suggests. There is, at the start of the second paragraph of this letter, a clear assertion on behalf of the defendants that the plaintiff did not comply with clause 27. That assertion is all-embracing, so far as the issue of non-compliance is concerned, and, while the defendants did not say explicitly that the condition as to timing was not satisfied, the words used encompass that and thereby counter any suggestion that the letter implicitly accepts that the timing requirement was met.
13 This being so, the first of the agreed issues mentioned at paragraph [2] above is to be addressed by referenced to the existence of the notices dated 24 March 2004 and the covering letters of 25 March 2004, the inference that the letters and accompanying notices were posted on or after Thursday 25 March 2004 and the acknowledgment by the respective addressees that each postal article was delivered on a day not capable of precise identification but falling within the period Monday 29 March 2004 to Friday 2 April 2004.
Determining the date on which the notices were given
14 The event upon which clause 27.1 is predicated is the giving of notice in writing. The operative verb is "give". It refers to "notice in writing". The event will be shown to have occurred only if a document containing the matter of which notice is to be given can be seen to have been put into the actual or constructive possession of the lessor. There is an onus upon the lessee to communicate by written means. The sufficiency of particular steps to constitute the giving of notice in writing is not in issue in this case. Each defendant admits that it or she received written notice as a result of delivery through the post. The only issue is as to the time at which (or day on which) notice in writing was given.
15 Clause 24 of each lease prescribes a way in which any "notice or request hereunder" may be "served". Clause 27.1 does not contemplate or require that a notice of exercise of option will be "served". Such a notice of exercise is, however, obviously a "notice or request hereunder". It is also a notice in written form. Clause 24 should therefore be regarded as identifying ways in which a clause 27.1 document may be transmitted so as to come to the attention of the lessor. In other words, the concept of service reflected in clause 24 should, in relation to notices in writing, be regarded as the same as the concept of giving in clause 27.1. In the case of a written notice, there can, as Plowman J observed in In re 88 Berkeley Road NW9 [1971] 1 Ch 648, "be no difference between 'serving' the notice and 'giving' the notice".
16 Clause 24 does not prescribe the manner of giving notices in any exclusive or compulsory way. It is facultative only ("… may be served") and leaves open any other method by which notice in writing may be given by one person to another. In this respect, the provision differs from those considered in cases such as Lolly Pops (Harbourside) Pty Ltd v Werncog Pty Ltd (1998) 9 BPR 16,361 and FAI General Insurance Co Ltd v Parras (2002) 55 NSWLR 498.
17 The other point to make about clause 24 is that it makes available alternatives, being "a manner mentioned in Section 170 of the Conveyancing Act 1919" and "a manner mentioned … in Section 220 of The [sic] Corporations Law". The second of these may be disposed of briefly as being irrelevant to this case where, on the evidence, the mode of communication chosen by the plaintiff was post. Under s.220 of the Corporations Law, as it stood until 1 July 1998 (when it was repealed by the Company Law Review Act 1998 (Cth)), the only method of service of a document upon a company involving use of the post was "by sending it by post to, the registered office of the company". In the absence of any evidence as to the location of the registered office of the first defendant, the plaintiff cannot rely on this former provision of the Corporations Law, via clause 24 of her lease from the first defendant. Even if it is correct to regard that lease entered into in June 1999 as referring to s.220 of the Corporations Law, it refers to a form of the section that no longer existed at the time. In June 1999, s.220 dealt with an entirely different subject matter. Any possibility based on s.220 of the Corporations Law must be disregarded.
18 There remain two other approaches to determining the question of the time at which the notices sent with the posted letters of 25 March 2004 should be found to have been given. The first centres on s.170 of the Conveyancing Act referred to in clause 24 of each lease. The other is that the notices should be regarded as having been despatched without regard for, and without any intention to adopt, a mode of service referred to in clause 24. I shall consider these possibilities in reverse order.
Fixing the time without regard to clause 24
19 If each posted notice is viewed as having been despatched by post in a way that pays no attention to clause 24, a decision as to the day on which the notice was given falls to be made by reference to the evidence, viewed in the light of the rules of evidence. The evidence leaves no doubt that each posted notice reached its destination on a day in the period Monday 29 March 2004 to Friday 2 April 2004. The evidence does not permit any more precise determination of the date of delivery.
20 Mr Turnbull submits that, in these circumstances, it is necessary to have regard to s.160 of the Evidence Act 1995:
"160 Postal articles
(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.